DTM16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2022] FCA 259
•22 March 2022
FEDERAL COURT OF AUSTRALIA
DTM16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 259
Appeal from: DTM16 v Minister for Immigration and Anor [2020] FCCA 2026 File number: VID 535 of 2020 Judgment of: NICHOLAS J Date of judgment: 22 March 2022 Catchwords: MIGRATION – complementary protection – where Immigration Assessment Authority (“IAA”) found that it would be reasonable for the appellant (a male of Hazara ethnicity) to relocate to Kabul – whether IAA failed to consider expert opinion and related submissions relied on by the appellant – whether primary judge erred in holding that IAA considered such material – whether IAA’s failure to consider such material deprived appellant of realistic possibility of a different outcome
Held: appeal allowed
Legislation: Migration Act 1958 (Cth) ss 5H, 5J, 36, 473CB, 473DB Cases cited: Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421
MZAPC v Minister for Immigration and Border Protection (2021) 390 ALR 590
Division: General Division Registry: Victoria National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 37 Date of hearing: 28 April 2021 Counsel for the Appellant: Dr A McBeth Solicitor for the Appellant: Beena Rezaee Legal & Migration Counsel for the First Respondent: Mr P Macliver Solicitor for the First Respondent: Clayton Utz Counsel for the Second Respondent: The second respondent submitted save as to costs ORDERS
VID 535 of 2020 BETWEEN: DTM16
Appellant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
NICHOLAS J
DATE OF ORDER:
22 MARCH 2022
THE COURT ORDERS THAT:
1.The appeal be allowed.
2.Set aside the orders of the Federal Circuit Court of Australia made on 24 July 2020 and, in their place, order that:
(a)writs of certiorari and mandamus be issued quashing the decision made by the second respondent on 11 November 2016 and remitting the matter to the second respondent to be determined according to law; and
(b)the first respondent pay the applicant’s costs of the application for judicial review to the Federal Circuit Court of Australia.
3.The first respondent pay the appellant’s costs of the appeal to this Court.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
NICHOLAS J
BACKGROUND
Before me is an appeal from a judgment of the Federal Circuit Court of Australia dismissing the appellant’s application for judicial review of a decision of the second respondent (“the Authority”) affirming a decision of a delegate of the first respondent (“the Minister”) not to grant the appellant a protection visa.
The appellant is a Hazara of the Shia faith who was born in Jaghori, Ghazni, Afghanistan. While the Authority was satisfied the appellant would be safe in his home area, it was not satisfied that he would be safe moving within the Ghazni Province or accessing his home area. The Authority found that if the appellant was to seek to return to his home area, there was a more than remote chance that the appellant would be harmed for reasons of his religion and ethnicity. However, the Authority went on to consider the question whether the appellant could relocate to Kabul. Before the Authority the appellant contended that it would not be reasonable for the appellant to relocate to Kabul. In support of his submission that it would not be reasonable for him to relocate to Kabul, he relied on a report of Professor William Maley AM dated 16 February 2016 (“Professor Maley’s report”).
The first question that arises in this appeal, which was decided against the appellant by the primary judge, is whether the Authority’s decision was affected by jurisdictional error by reason of it having failed to give proper consideration to Professor Maley’s report.
THE RELEVANT STATUTORY PROVISIONS
Sections 5H, 5J and 36 of the Migration Act 1958 (Cth) (“the Act”) provide the statutory context for the Authority’s decision. They relevantly provide:
5H Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person:
(a)in a case where the person has a nationality—is outside the country of his or her nationality and, owing to a well‑founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)in a case where the person does not have a nationality—is outside the country of his or her former habitual residence and owing to a well‑founded fear of persecution, is unable or unwilling to return to it.
Note: For the meaning of well‑founded fear of persecution, see section 5J.
…
5J Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)the real chance of persecution relates to all areas of a receiving country.
…
36 Protection visas - criteria provided for by this Act
…
(2) A criterion for a protection visa is that the applicant for the visa is:
(a)a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa)a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
…
(2A) A non-citizen will suffer significant harm if:
(a)the non-citizen will be arbitrarily deprived of his or her life; or
(b)the death penalty will be carried out on the non-citizen; or
(c)the non-citizen will be subjected to torture; or
(d)the non-citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)the non-citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non-citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)it would be reasonable for the non-citizen to relocate to an area of the country where there would not be a real risk that the non-citizen will suffer significant harm; or
…
(Original emphasis)
THE MALEY REPORT
Professor Maley’s report was attached to a letter dated 25 February 2016 (“the 25 February submissions”) from the appellant’s representative to the Department. It was common ground before the primary judge that Professor Maley’s report and the 25 February submissions were provided to the Authority in accordance with s 473CB of the Act and form part of the review material. It was also common ground that, in accordance with s 473DB of the Act, the Authority was required to consider Professor Maley’s report and the appellant’s related submissions. Further, it was common ground that, as found by the primary judge, the Authority did not refer to Professor Maley’s report in its reasons for decision.
Professor Maley is the Professor of Diplomacy at the Asia Pacific College of Diplomacy at the Australian National University. He has published extensively on Afghan politics. According to Professor Maley’s report, he visited Afghanistan in April 2013 and November 2015 and conducted interviews in western districts of Kabul in which members of the Hazara ethnic group are concentrated. His report includes an analysis of the dangers facing Hazaras in Afghanistan including in the Ghazni Province. It also deals with the social and economic problems facing Hazaras who are returned to regions in which they lack strong social connections.
Professor Maley’s report states at para 6:
A recent study of returnees to Afghanistan highlights how difficult reintegration can be even if people do have associates in the region to which they are returned (Liza Schuster and Nassim Majidi, What happens post-deportation? The experience of deported Afghans', Migration Studies, vol.1, no.2, 2013, pp.1-19). Of course, an Hazara returned from abroad with no ties in areas they can safely access would be in an even more perilous position. This ties in directly with the issue of livelihood opportunities. Again, serious research in this area highlights the importance of social relations. A recent study by Kantor and Pain emphasises the centrality of relationships to livelihoods in rural Afghanistan, and the points they make apply equally to urban areas (Paula Kantor and Adam Pain, Securing Life and Livelihoods in Afghanistan: The Role of Social Relationships (Kabul: Afghanistan Research and Evaluation Unit, December 2010). The mere fact that there may be people of similar ethnic background living in a potential relocation destination does not overcome this problem, since ethnic identities do not in and of themselves give rise to the ties of personal affinity and reciprocity that arise from family connections. (Indeed, one mistake that observers – even Afghan observers – on occasion make is to underestimate the degree of differentiation amongst groups such as the Hazaras, including distinctions between elite and non-elite figures, distinctions based on district of origin and tribe, and distinctions based on values and ideology.) An Hazara who is returned to a region in which he lacks strong social connections is likely to end up destitute, or be exposed to gross exploitation or criminal predation. The simplistic and superficial conclusion that Kabul offers a safe or meaningful 'relocation' option for Hazaras should be avoided.
(Emphasis added)
The 25 February submissions identified a number of issues which had been referred to in a prior interview with the appellant including the issue of relocation. The 25 February submissions included details concerning Professor Maley’s research in Kabul. The appellant’s representative states at para 36:
On 16 February 2016, Professor William Maley of the Australian National University, renowned expert on Afghanistan, has provided an updated analysis on the current situation for Hazaras in Afghanistan. You will find enclosed herewith and marked D a copy of this expert opinion "On the Return of Hazaras to Afghanistan." The expert opinion was provided in response to a personal request and provides an analysis which is based, among other things, on Professor Maley’s recent visit to Afghanistan in November 2015 which included his conduct of interviews in western districts of the city (noting the Applicant spent a short time frame in Afshar district, situated in the southwest of Kabul).
(Footnote omitted)
It is apparent from the 25 February submissions that the United Nations High Commissioner for Refugees (“UNHCR”) Guidelines were raised with the appellant during an interview which took place on 3 February 2016. In the 25 February submissions at para 39 the appellant’s representative states:
At interview, it was also raised that the UNHCR has accepted that for “young, able bodied men,” it is reasonable for them to live in Kabul without having family members or contacts. We note this is a reference to the 2013 UNHCR Eligibility Guidelines for Afghanistan and we request that the passage there not be read out of context:
The only exception to this requirement of external support are single able-bodied men and married couples of working age without identified vulnerabilities, who may in certain circumstances be able to subsist without family and community support in urban and semi-urban areas that have the necessary infrastructure and livelihood opportunities to meet the basic necessities of life and are under effective government control. Given the breakdown in the traditional social fabric of society caused by decades of war, mass refugee flows and internal displacement, a case-by-case analysis will, nevertheless, be necessary. [Emphasis added].
(Original emphasis, footnote omitted)
The 25 February submissions drew attention to what were described as important findings by Professor Maley. The 25 February submissions include (at para 40) reference to “the particular vulnerability of Hazaras returning from abroad to Kabul without the requisite support networks” and quote from Professor Maley’s report extensively on that topic. The 25 February submissions reproduce almost the whole of para 6 of Professor Maley’s report with emphasis given to (inter alia) the last two sentences in that paragraph.
The appellant’s submissions on appeal (and presumably to the primary judge) focused on the final two sentences of para 6.
THE GROUNDS OF APPEAL
The notice of appeal includes the following grounds:
1.The Federal Circuit Court erred in failing to find that the decision of the Second Respondent (‘Authority’) was affected by jurisdictional error in that it failed to give proper consideration to parts of the review material provided to the Authority under s 473CB, namely:
(a)the report of Professor Maley; and/or
(b)information regarding lack of access to clean water and electricity and high rents facing persons relocating to Kabul; and
further and alternatively, that the Authority failed to give proper consideration to the submissions of the appellant commenting on those matters.
2.The Federal Circuit Court erred in failing to find that the decision of the Authority was affected by jurisdictional error in that it misapplied the test for the reasonableness of relocation by:
(a)taking a statistical approach to the degree of risk faced by the appellant in Kabul; and/or
(b)failing to consider whether it would be reasonable for the appellant to relocate to a place where he would face a risk of harm that may not rise to the threshold of a real risk of significant harm; and/or
(c)failing to consider the reality that the appellant would likely be relocating as a young family rather than as a single man.
The appellant did not press subpara (b) in ground 1 or subpara (a) of ground 2. Further, the appellant accepted that subparas (b) and (c) of ground 2 were premised on arguments not raised before the primary judge and therefore, for that reason, leave is required if the appellant is to be permitted to rely upon them.
THE AUTHORITY’S REASONS
In the context of considering complementary protection it was necessary for the Authority, in addressing s 36(2B) of the Act, to determine whether it would be reasonable for the appellant to relocate to an area of the country where there would not be a real risk that he would suffer significant harm.
Having considered the security situation in Kabul and, in particular, the risk of harm arising from generalised violence, the Authority found that the risk of the appellant being harmed through generalised violence was remote and, therefore, there was not a real risk of him facing significant harm of that kind in Kabul.
The Authority then turned to consider whether it would be reasonable for the appellant to relocate to Kabul. The Authority stated at [69]-[74]:
69.In terms of whether it would be reasonable for the applicant to relocate to an area of the country such as Kabul where there would not be a real risk that he will suffer significant harm, the applicant claims that relocation would be unreasonable, because he has "never lived in Kabul (beyond several months while at university) and has no family or other support networks, is uneducated, and [the] ... general living conditions for individuals ... cause severe hardship".
70.The security and general living conditions in Kabul would be challenging, however there are a range of considerations that indicate the applicant could successfully relocate to Kabul and that it would be reasonable for him to relocate to this area.
71.The applicant has lived in Kabul, albeit for a brief period during university, but also claims to have travelled there for supplies for his store. I am satisfied he has some familiarity with the city. He is not uneducated, but in fact finished high school, undertook a year of prep studies to enable him to enter a university, and he studied in Kabul for a few months at a university. He has a range of work experience, including a demonstrated ability to create and run his own business. I find that he would also be able to obtain some financial support from his family if he were to relocate to Kabul. In that context, I find that even accounting for the difficult employment and economic situation in Kabul, I am satisfied that the applicant would be able to find work or start a business and establish himself in the city.
72.In terms of that support, I accept his evidence given at interview and in his submissions that he would not have family or support networks in Kabul, but I find that the applicant has misrepresented the financial support his family could provide him from outside of the city. I do not accept his claims that his family cannot support him. I have found his evidence as to how he and his family funded his travels to Australia, and his brother's multiple trips to Dubai, to be unconvincing. The applicant has not adequately explained how his family was able to pay for his travels to Australia, given the demise of his own business and the costs associated with his widowed mother running a farm, and sending his siblings to school. Even allowing for his savings, his business only made AFN 25,000 (US 357) a month, which would not explain how he was able to accumulate the amount needed. He continues to claim they are not in a strong financial position. I do not accept the applicant's submissions that the delegate's conclusions on his family's finances were not open to her. I am satisfied that the applicant's family is in a stronger economic position than claimed and they have the ability to support the applicant in any relocation to Kabul.
73.In any event, I am satisfied he could relocate without that support. UNHCR and DFAT advice indicates that relocation to urban areas is more successful for those that possess family and tribal connections. The exception to this is single able-bodied men and married couples of working age without specific vulnerabilities. The applicant is a young, apparently able-bodied man. The applicant is engaged, but does not have children. He speaks Hazaragi and some English, and I am satisfied he has no vulnerabilities that would impact on his ability to relocate to Kabul. While I accept there would be challenges in terms of him being unable to visit his extended family outside of Kabul, I do not accept that by necessity the applicant would need to return to Jaghori for family obligations if it is the case that his life is at risk. In any event, I am not satisfied that those familial and social barriers outweigh the factors that indicate it would be reasonable for the applicant to relocate to Kabul.
74.Considering all the circumstances, I am satisfied it would be reasonable for the applicant to relocate to an area of the country such as Kabul where there would not be a real risk that the applicant will suffer significant harm. As I am satisfied that the applicant could relocate to Kabul, there is not a real risk that the applicant will suffer significant harm in Afghanistan.
(Footnote omitted)
The Authority’s reasons include a footnote at the second sentence of [73] referencing a UNHCR report dated 19 April 2016 and a DFAT report dated 18 September 2015 (“the DFAT Report”). Somewhat unhelpfully, the material included in the appeal book does not include a copy of either document. There appears to be at least two editions of the UNHCR report, one produced in 2013 (which is referred to in the 25 February submissions) and another produced in 2016 (referred to in the Authority’s reasons). However, as best as I can tell, the relevant part of each edition is in identical terms. I will hereafter refer to these documents as the “UNHCR Guidelines”.
There are two observations to make in relation to these paragraphs in the Authority’s reasons that are of particular relevance to the appeal. First, the Authority found at [72] that the appellant’s family were able to provide financial assistance to the appellant to support any relocation to Kabul. Secondly, the Authority notes in [73] of its reasons that it was satisfied the appellant “has no vulnerabilities that would impact on his ability to relocate to Kabul”. A fair reading of [73] indicates that the Authority considered that, even if the appellant did not receive the financial assistance from his family, it would still be reasonable for him to relocate to Kabul.
THE PRIMARY JUDGE’S REASONS
At [18] of her reasons, the primary judge set out what she referred to as the critical part of Professor Maley’s report being the penultimate sentence in para 6. Her Honour said at [18]-[26]:
[18]The relevant part of Professor Maley’s report is set out above, but the most critical part of it is:
An Hazara who is returned to a region in which he lacks strong social connections is likely to end up destitute, or be exposed to gross exploitation or criminal predation.
[19]The Minister submitted that all three reports acknowledged the difficulties faced by people in Afghanistan who attempted to relocate to areas without family support. The Minister further submitted that the UNHCR Guidelines indicated that there was an exception to those general difficulties, and submitted that Professor Maley’s report did not exclude that exception.
[20]That is correct. While Professor Maley said it was likely that a person without strong social connections would end up destitute, or be exposed to gross exploitation or criminal predation, Professor Maley did not say that outcome was inevitable. Therefore, Professor Maley’s report left room, so to speak, for the exception in the UNHCR Guidelines.
[21]Contrary to the Minister’s submission, the DFAT report did not acknowledge the difficulties of relocating in Afghanistan particularly clearly. It focussed on the matters that would lead to a relocation being more successful. However, the UNHCR Guidelines were certainly very clear at page 8 that it was not reasonable for those without appropriate supports to relocate within Afghanistan.
[22]Consequently, this case differs from [Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431], because the Authority was not confronted with a choice between conflicting pieces of country information. Therefore, it was not a jurisdictional error for the Authority to fail to weigh up Professor Maley’s report as against the UNHCR Guidelines. The usual rules applied in this case, namely, that:
a.a decision-maker is not obliged to refer to every piece of evidence: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593; (2003) 75 ALD 630; [2003] FCAFC 184; and
b.it is open to a decision-maker to choose which items of country information to prefer.
[23]Moreover, the Authority accepted the substance of Professor Maley’s report, finding that the applicant’s relocation would be challenging and that the employment and economic situation in Kabul would be difficult. The Authority also addressed the issue of the support that the applicant would have in Kabul, thus indicating an awareness of the issues raised in Professor Maley’s report. In these circumstances, the failure to mention Professor Maley’s report by name was not indicative of jurisdictional error.
[24]However, the most important point is that the Authority had two independent bases for considering that the applicant could reasonably relocate to Kabul. The first, in paragraph 72 of the Authority’s reasons for decision, was that, contrary to the applicant’s submissions, he would have financial support from his family if he relocated to Kabul. That finding meant that the applicant would not be in the category of people described by Professor Maley, being those who were without strong social connections, who, because of the economic consequences of being without strong social connections, were likely to end up destitute, or exposed to gross exploitation or criminal predation. This is another reason that it was not an error for the Authority to not mention Professor Maley’s report. It was not relevant to the applicant’s personal circumstances, because he was not a person who would be without financial support from his family in Kabul.
[25]The Authority went on in paragraph 73 of its reasons for decision to consider the applicant’s position if he did not have his family’s financial support in Kabul. This was an entirely independent basis for the Authority’s conclusion that the applicant could reasonably relocate to Kabul. This basis arose from the exception mentioned in the UNCHR [sic] Guidelines. As discussed above, the report by Professor Maley did not mention this exception, but did not exclude the possibility of it either. In these circumstances, it was unnecessary for the Authority to mention the report by Professor Maley, as it did not address the exception identified in the UNHCR Guidelines.
[26]The applicant argued in this court that it was not open to the Authority to disregard Professor Maley’s report, because the submission to the delegate relied on Professor Maley’s report as a direct counter argument to the exception identified in the UNHCR Guidelines. However, it is implicit in the Authority’s reasons for decision that the Authority considered that Professor Maley’s report was no answer to the exception identified in the UNHCR Guidelines. For the reasons discussed above, that view was open to the Authority.
(Original emphasis)
In essence, the primary judge found that, although the Authority was required to consider Professor Maley’s report, it was not required to refer to it, and that it was open to the Authority to prefer other country information over it. Her Honour’s approach to the Authority’s reasons implicitly accepts that the Authority was cognisant of Professor Maley’s report and the related submissions, that it gave them its consideration as required, and that the Authority’s omission to refer to any part of Professor Maley’s report or the related submissions is attributable to the Authority having preferred other country information. The primary judge also found that there were two separate bases upon which the Authority relied in concluding that it was reasonable for the appellant to relocate to Kabul.
CONSIDERATION
The appellant challenges the correctness of the primary judge’s reasoning. The Minister contends that the primary judge’s reasoning is correct but that even if there had been a failure on the part of the Authority to consider Professor Maley’s report or the related submissions, then this failure did not constitute a jurisdictional error because there is no realistic prospect that, had it done so, the outcome of the review would have been different.
There was no dispute between the parties as to the relevant legal principles. The Authority was required to consider, in the relevant legal sense, the claims expressly made by the appellant or those which squarely arose on the material before it.
Here the appellant made express claims (which might be better described as objections) as to whether it would be reasonable for him to have to relocate to Kabul which were clearly articulated in paras 39 and 40 of the 25 February submissions. As previously explained, those submissions drew express attention to para 6 of Professor Maley’s report dealing with the problems facing a Hazara who is returned to a region in which he lacks strong social connections.
I have previously referred to the UNHCR Guidelines which were referred to in para 39 of the 25 February submissions. It appears from what the Authority said in [73] of its reasons that DFAT’s advice was much to the same effect. Importantly, the exception referred to by the Authority in [73] is confined to “single able-bodied men and married couples of working age without identified vulnerabilities”. The qualification “without identified vulnerabilities” is significant when one has regard to the submission made in para 40 of the 25 February submissions and the contents of Professor Maley’s report. The point made by the appellant in para 40 of the submission and in Professor Maley’s report was that Hazaras were particularly vulnerable when returning from abroad to Kabul without family and community support. In my view the primary judge was in error in holding that the Authority’s decision could be understood on the footing that the appellant fell within the exception identified in the UNHCR Guidelines without also considering whether, as Professor Maley’s report makes clear, being a Hazara is itself a relevant vulnerability. Indeed, in light of the finding made by the Authority in [73] of its reasons that the appellant could relocate to Kabul without financial support, I think it is unlikely that the Authority could have considered, in the relevant sense, Professor Maley’s report and still failed to mention it. Professor Maley’s report provided what appears to be a highly credible and well researched expert opinion which was not contradicted by the other country information referred to by the Authority and which weighed heavily against the finding in [73].
The primary judge also made the point that [72] of the Authority’s reasons provides an independent basis upon which the Authority concluded that it would be reasonable for the appellant to relocate to Kabul based on the fact that he would be in receipt of financial support from his family. That is no doubt correct, but it does not follow that Professor Maley’s report was considered by the Authority or that the Authority undertook the necessary active intellectual process in considering this material.
In his submissions the Minister placed some reliance on the statement in [2] of the Authority’s reasons in which it states that it had regard to the material referred to it by the Secretary under s 473CB of the Act. In my opinion that extremely general and somewhat formulaic statement does not provide any adequate basis for inferring that the Authority gave consideration, in the relevant sense, to Professor Maley’s report.
I therefore do not accept that the absence of any reference to Professor Maley’s report or the related submissions in the Authority’s reasons can be explained, in the primary judge’s words, on the basis “… that Professor Maley’s report was no answer to the exception identified in the UNHCR Guidelines.” Nor do I think there is any other basis for inferring that in coming to its decision in relation to relocation, the Authority considered Professor Maley’s report or the related submissions. In my opinion it is more probable than not that the Authority failed to consider Professor Maley’s report and the related submissions.
THE NOTICE OF CONTENTION
The Minister filed a notice of contention in which he contends that any error by the Authority in failing to consider Professor Maley’s report was not material because it could not realistically have resulted in the Authority making a different decision. Subject to the issue of materiality, I did not understand the Minister to contend that any failure of the Authority to consider that material would amount to a jurisdictional error.
The authorities establish that it is for the party who asserts that an error made by a decision-maker is a jurisdictional error to show that if the error had not been made, there would have been a realistic possibility of there being a different result: Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; MZAPC v Minister for Immigration and Border Protection (2021) 390 ALR 590. I am therefore mindful that this is a matter upon which the appellant carries the onus.
There were really two grounds on which the Minister contended the appellant could not discharge the onus in this case. The first was that the appellant was within “the exception” referred to in the country information identified by the Authority. It should already be clear from what I have said that I do not accept that the appellant was within any relevant exception. Professor Maley’s report made clear that the fact that the appellant was a Hazara put him outside the scope of the relevant exception.
The other ground on which the Minister contended that the appellant could not discharge the onus was the alternative ground for the Authority’s decision which focused on the availability of financial support. The thrust of the submission, as I understood it, was that what Professor Maley said about the risks facing Hazaras relocating to Kabul where they lack strong social connections could not apply to the appellant because he would, according to the Authority’s finding, be financially supported by his family.
There is some force in this contention. However, it is clear from a reading of Professor Maley’s report that he was referring to the need for Hazaras to have strong social connections in the location to which they were being returned. In the present case the Authority’s reasons makes clear that the appellant does not have any such connections in Kabul. A significant question that arose from the material before the Authority was whether the availability of financial support from family members not located in Kabul would eliminate or reduce the risk that the appellant, as a Hazara, would “end up destitute or be exposed to gross exploitation or criminal predation”.
One might reasonably infer that if the appellant was in receipt of adequate financial support from his family, he would not end up destitute. But that is not the only adverse outcome that Professor Maley identified in his report. He also referred to the likelihood that a Hazara returning to a region in which he lacked strong social connection might end up exposed to gross exploitation or criminal predation.
One possibility that has not been considered by the Authority is that a person in the appellant’s circumstances, in receipt of financial support from family members residing outside Afghanistan, may be even more vulnerable to exploitation (eg. at the hands of extortionists) than those who were not in receipt of such support. Whether or not that is correct is not the question. What matters here is that the significance of the risks which, according to Professor Maley, a Hazara faces in relocating to Kabul were not properly considered by the Authority. Professor Maley’s report does not expressly indicate whether a Hazara male with financial support from family members residing outside Afghanistan would still be vulnerable to exploitation or predation in Kabul if required to relocate there.
As I have previously observed, Professor Maley’s report appears to be a highly-credible and well-researched expert opinion that provided considerable support for the appellant’s contention that it would be unreasonable to require him to relocate to Kabul. The matter is not to be approached on the basis that the Authority would have approached the report with any particular predisposition to either accept or reject what Professor Maley had to say in relation to relocation. Nor is it to be assumed that, if the Authority had addressed the substance of Professor Maley’s observations, it would have necessarily concluded they did not apply to the appellant given the availability of financial support from his family. In my opinion, had the Authority considered Professor Maley’s report, it may well have come to a different conclusion in relation to relocation. I consider that the appellant was deprived of a realistic possibility of obtaining a different outcome because of the Authority’s error.
In the result, I am persuaded that appeal ground 1(a) should succeed. In those circumstances, it is not necessary for me to consider the additional grounds upon which the appellant sought leave to rely.
DISPOSITION
The appeal will be allowed. The judgment of the primary judge will be set-aside. There will be orders for the issue of writs of certiorari and mandamus quashing the Authority’s decision and remitting the matter to the Authority for determination according to law. The Minister must pay the appellant’s costs of the proceeding before the primary judge and of the appeal.
I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Nicholas. Associate:
Dated: 22 March 2022
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